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No decision yet in Hill suit against Spotsy

Spotsylvania judge hears arguments in school superintendent's FOIA case

Date published: 11/2/2007

By DAN TELVOCK

Spotsylvania Circuit Court Judge David Beck will decide Wednesday if documents the county government withheld from School Superintendent Jerry Hill should be released under the state's Freedom of Information Act.

Hill, through his attorney Steven Webster, sent a FOIA request to County Administrator Randy Wheeler on April 20 seeking all information used to indict him in February 2006 on an election-law violation and an obstruction of justice charge.

The charges were connected to a 2005 bond referendum of which School Board members and Hill had been critical. That summer, a judge dismissed one charge, and special prosecutor Matt Britton dropped the other.

Hill is now exploring a civil lawsuit against unnamed parties in connection with the failed prosecution.

Hill and Webster argue that information requested was improperly censored, or withheld altogether.

The county gave Hill numerous e-mails sent and received by supervisors. But two, on Sept 8 and 9, 2006, between Supervisor Gary Jackson and former local political leader Russ Moulton, had portions blacked out. County Attorney Jacob Stroman said the blacked-out portions are not matters of public business. Another 30 documents were withheld for various reasons, including attorney-client privilege.

In September, Moulton released one of those e-mails in its entirety to The Free-Lance Star, which published the previously blacked-out portions. After the newspaper published the e-mail, the county released it to Hill. The second e-mail has been released only in its altered form.

Webster argued yesterday that because the county government produced the e-mails as part of Hill's request, that made them public. He cited a Virginia Freedom of Information Act Advisory Council opinion that if a public body releases a document, then all of it is public, and parts of it cannot be redacted even if it is personal.

"I think the advisory council is just an advisory body, and it certainly wasn't dealing with the facts of this case," said Patrick Taves, who is representing the county in the case.

Taves argued that Wheeler is not the "custodian" of Jackson's private e-mail account, from which the messages were sent.

He said the court needs to "look at who is the custodian of the private e-mail account?"

"They haven't requested the document from Mr. Jackson," Taves said.

DISMISS THE CASE? Spotsylvania County's outside counsel Patrick Taves asked the judge to dismiss Superintendent Jerry Hill's Freedom of Information Act case, arguing three main points: Hill filed the FOIA request with the wrong custodian, he filed suit against the wrong party and Hill has no standing in the lawsuit because his attorney filed the FOIA request. The "county of Spotsylvania," named as the defendant in Hill's lawsuit, is not a public body, Taves said. The lawsuit should be against the Board of Supervisors, he said. The FOIA request should have been sent to Supervisor Gary Jackson, who sent some of the e-mails in question, Taves said. Hill's attorney, Steven Webster, said the "technical journey" Taves was arguing is irrelevant. He said the FOIA law includes "cities, towns and counties" as public bodies. Webster said it was clear to county officials that he filed the FOIA request on behalf of Hill. Deputy County Administrator Ernie Pennington testified that he figured the request was from Hill. Webster argued that sending the request to Wheeler was sufficient. "What they are saying is you have to send the request to the precise person who may have that specific document in their file cabinet," he said.

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Date published: 11/2/2007